Kagan's DOMA 'gotcha' moment

Supreme Court Justice Elena Kagan caught the attorney defending the Defense of Marriage Act in a rare “gotcha” moment — in the eyes of many in the audience — at the high court on Wednesday.

In discussing the origins of the law, Paul Clement, who represents the Bipartisan Legal Advisory Group, said that Congress’s key interest in passing DOMA was preserving the uniform treatment of couples in various states at a time when there where indications that some states might allow same-sex marriages.

Story Continued Below

“All these federal statutes were passed with the traditional definition of marriage in mind,” Clement said. “What Congress says is, ‘Let’s take a time out. This is a redefinition of an age-old tradition.’”

But Kagan fired back in her questioning, telling Clement that Congress wasn’t preserving tradition, but departing from it when it jumped into the marriage issue. “The only uniformity that the federal government has pursued is that it’s uniformly recognized the marriages that are recognized by the state,” she said. Congress’ foray into the issue in 1996 was so unusual that it “sen[t] up a pretty good red flag,” she said.

A short time later, Kagan read aloud from the House Judiciary Committee report on DOMA. “Congress decided to reflect and honor of collective moral judgment and to express moral disapproval of homosexuality,” she said, quoting the report.

“Is that what happened in 1996?” she asked to gasps, “oohs” and some laughter from many in the gallery who seemed to think she’d managed a rare Supreme Court “gotcha” moment.

Clement said he was not claiming moral disapproval constituted a sufficient basis for the law. “The House report says those things,” he said. But, he added, “we’ve never invoked [the language] in trying to defend the statute.”